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The Right to make a Racket

With the recent trends of more town centre conversions to residential use, as well as proposals for more new build schemes, issues over compatibility with existing neighbouring town centre activities that generate noise can be a concern, specifically in relation to existing pubs, nightclubs and music venues, which are often located in town and city centres.

Residential development being placed next to existing noise-making venues has the potential to cause tension between the eventual residential occupiers and noisy late light businesses. There is no defence in English law to say that a complainant has ‘come to the nuisance’ and therefore must put up with it. As a result, where the noise being generated is found to be a legal nuisance, an established venue may have to close down, even if it has operated lawfully in the same location for many years.

The principle of ‘noise’ easements being acquired over a long period of time was recognised by the Supreme Court in the speedway venue case of Coventry and others v Lawrence and another 2014, where a couple who had bought a house near an established speedway stadium subsequently complained about the noise. The Supreme Court decided that, although on the facts of this particular case, a period of long user hadn’t been sufficiently established, the right to commit a noise can be a) an easement and b) acquired by prescription (i.e the noise being regularly generated for over 20 years) even though the emissions may not be continuous and may vary in terms of volume and frequency.

Two more recent planning cases involving applications for residential developments next to the George Tavern in Stepney and the Ministry of Sound nightclub near the Elephant and Castle have highlighted that noise-making venues can be potentially afforded some protection against future nuisance claims through the planning process. The local planning authority required, in addition to planning conditions on the residential permission, such as the provision of acoustic barriers and sealed glazing, an obligation for the developer to grant a deed of easement over the new development in favour of the venue for the right to continue to generate noise at pre-determined levels defined in the deed. The theory is that the easement then becomes binding on any owner/occupiers who purchase the residential units, thus disbarring them from complaints of nuisance, provided that the venue continues to operate in accordance with the easement terms.

Comment

The validity of this approach in planning terms is yet to be tested, given the potential for arguments about private law issues such as easements or covenants not being material considerations as to whether to grant planning permission for what may be otherwise controversial development in a neighbourhood.

On the face of it, a noise easement would seem to have the potential to be a useful device to keep in the developer’s toolkit and for owners of such venues to put forward as part of their objections. It will also be interesting to see how the existence of such easements, whether acquired by deed or prescriptive use, might impact upon the saleability of the residential units built in close proximity to such venues.